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14 Santa Clara Lawyer 83 (1973-1974)
A Final Assault on Attempted Assaults

handle is hein.journals/saclr14 and id is 97 raw text is: COMMENTS

In theory it has been recognized that the function of the
courts is to provide justice through the written law, although in
practice some flexibility is necessary in interpreting the written
law in order for the courts to dispense substantial justice.' Despite
the fact that the wording of statutes can rarely be sufficient to
encompass all situations which might be deserving of sanction,
the interpretative function of the courts, as applied in the criminal
law, can be a danger to the rights of every individual if it brings
the court into the realm of judicial legislation.2
A certain amount of judicial leeway is required if the court
is to function properly within the bounds of the law, but this ju-
dicial flexibility can never extend so far as to pre-empt the legis-
lature by judicial declaration of crimes which the state itself has
not seen fit to recognize.
The California Supreme Court, when faced with the issue of
whether a crime of attempted assault could be recognized and
punished in this state, concluded that though the concept of such
a crime might not be logically absurd, such an academic conces-
sion could not be the equivalent of declaring it to be a punishable
offense under the laws of this state.'      The court reversed the
decision of the court of appeal,4 which had upheld a conviction
1. Nulla Crima Sine Lege, no crime without law, is a legal principle so
ancient that its origin is uncertain. However, by the time America became
independent this doctrine had largely been replaced by Nulla Poena Sine Lege,
no punishment without law. Today strict adherence to either of these principles
has waned in favor of allowing more flexibility in fitting the punishment to the
crime. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW (2d ed., 1960). That the
abolition of Nulla Poena Sine Lege took place first in the treatment of juveniles
is . . . significant as an index to the motivation behind the movement for
individualization in democratic countries. But the hazardous possibilities of this
are now all-too-apparent-the abolition of Nulla Poena Sine Lege may result not
in the humane use of science but in harsh repression and stupidity. Id. at 68.
Cf. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1789).
2. Judicial legislation, also termed judge-made law, refers to a judicial deci-
sion which construes away the meaning of a statute, or finds meaning never
contemplated by the legislature. The danger of it lies in the abridgement of the
doctrine of the separation of powers.
3. In re James M., 9 Cal. 3d 517, 510 P.2d 33, 108 Cal. Rptr. 89 (1973).
4. Court of Appeal of the State of California, Second Appellate District,
Division One (Dec. 29, 1972). Decision by Thompson, J., with Lillie, Acting

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